Rowland v. St. Louis, Iron Mountain & Southern Railway Co.

The first and second counts in the statement filed with the justice of the peace, though obviously insufficient, yet contain sufficient matter to amend by, as it evidently inferentially refers to the 43rd section of the railroad act. The circuit court, therefore, committed no error in permitting the amendment of the statement when the cause came to that court by appeal.

But the amendment, when made, did not state facts constituting a cause of action, even under the section referred to, as amended, (Acts 1875, p. 131,) because the amended statement does not set forth that the hogs got on the railroad or were killed in consequence of the “failure to construct and maintain such fences or cattle-guards.” Luckie v. R. R. Co., 67 Mo. 245; Cunningham v. R. R. Co., 70 Mo. 202. From aught that appears in the amended statement the killing may have occurred within the limits of some incorporated town, where neither the law would require, nor the corporate authorities permit the defendant to fence its road. The judgment is reversed and the cause remanded.